THE MARYLAND ADVOCATE Opinions, News and Commentary from The Animal Law Section

Gary C. Norman, Chair Vol. I, No. 3 Jan Berlage, Vice-Chair September 2009 Kathy Anne Mancusi, Editor Maryland State Bar Association, Inc. Message From The Chair By Gary C. Norman, Esq.

am honored to serve you as your Chair. I shall provide a seat on Section Council in the spring, or fi nd ways to con- an introduction and a sense of the calendar for this tribute your talents to the critical work of the Section on be- year. I am a staff attorney with the federal govern- half of animal law and policy in the state. Please telephone Iment, and am an LLM student at American University, me on my cell at (410) 241-6745 or communicate with me Washington College of Law. I am one of the ten 2009 Ten via an e-mail at [email protected] if I can be of Outstanding Young Americans. My published works as re- assistance. Once again, thanks for this opportunity. spects animal law, include, a book chapter in the 2009 ABA Litigating Animal Law: A Complete Guide for Lawyers. Sincerely, Well. This would appear to be more than enough about me. Importantly, this is to encourage you to be involved with the Section this year as myriad programs will be planned. Gary C. Norman Chair 1. In October, we will have our annual “kick-off event.” [email protected] 2. Section Council Meetings are planned for mid Novem- ber, late March and the end of April. 3. General programs are being planned presently, and will be announced accordingly; that stated, however, the Section is contemplating having programs on health- care issues related to companion animals, a legislative reception, and issues related to agriculture. 4. Additionally, a steering committee, which is composed of members of the Section Council and which is being led by our vibrant section within the MSBA, is plan- IN THIS ISSUE ning a regional animal law symposium. 5. Furthermore, the Section is exploring an annual award Lynx’s Legal Oddyssey...... 2 that will recognize the outstanding efforts of judges, lawyers, legislators, professors, or other legal or policy Federal Legislation Under professionals for advocating, advancing, or litigating Consideration...... 4 animal law issues. The goal is to unveil this award, for the fi rst time, at the 2010 annual program. While the Section Members and Offi cers...... 5 committee for this award will be composed of members Licensing Backyard ...... 6 of the Section Council, non-Section Council Members is invited to serve on the committee. Commentary...... 7

As you can read, the Section will be busy this year. My hope, as is certainly the circumstance with the remainder of www.msba.org/ sec_comm/ the Section Council, is that you attend an event, be more in- sections/animallaw/ volved with the Section by expressing an interest to run for Wild and Exotic Animals in Maryland ~or The Story of One Siberian Lynx’s Legal Odyssey~

By Anne Benaroya

“Lions and tigers and bears, oh my!” cried Dorothy in the Baltimore County Animal Control offi cers visited Eagle’s iconic fi lm, The Wizard of Oz. All aspects of our culture, Nest and reluctantly charged Vitilio with violating the Coun- from art to religion and science are rife with references ty Code’s requirement that he obtain a local “wild animal” to wild and exotic animals. Since ancient times, we have permit to keep Puddy. When Vitilio requested a hearing for been fascinated with these creatures; we have delighted the violation no one foresaw the twists and turns that would in their beauty and studied their habitats and behavior for confound county offi cials and capture the public’s mind. thousands of years. Now many wild and exotic species For several years Eagle’s Nest had been serving Baltimore are threatened or near extinction, a situation that focuses County as a haven for unwanted or injured creatures; hawks our attention on our and owls, an American relationship with them Bison and her calf, an more critically than African Serval cat and ever before. We now many others called the ask ourselves whether Vitilio’s ranch “home” these creatures should until their release or be “privately owned” placement elsewhere. and what exactly “private ownership” At the time Vitilio re- means. To some peo- ceived the “wild ani- ple private ownership mal” violation, he al- generates outrage by ready had obtained a conjuring images of U.S. Department of these creatures aban- Agriculture Class C doned at local animal Exhibitor’s license for shelters after having been exploited by the entertainment Puddy. The license played a key role in Vitilio’s right to industry or a selfi sh individual; to others private ownership keep Puddy at Eagle’s Nest while the legal proceedings evokes sympathy for the individual or group advocating dragged on. The federal Animal Welfare Act requires zoo- rescue by a private organization. logical parks, animal shelters and other animal care facili- ties to hold a Class C license for each animal if she or he is Either way, our relationship with these creatures is increas- a member of a statutorily protected species, such as medium ingly controversial and the terms of the debate are chang- and large felines (lions, tigers, and other wild cat species), ing. These important issues are touched on by the case in non-human primates (great apes, monkeys, lemurs, orang- this article; however, critical discussion of “private owner- utans, etc.) marine mammals (dolphins, manatees, whales, ship” is beyond its scope. This is a short story about Puddy etc.) and some others. Cat, a Baltimore County resident who happens to be a Si- berian Lynx. To obtain the federal license Vitilio’s ranch had to pass a rigorous (annual) inspection by the Animal, Plant, Health In the spring of 2005 Puddy Cat, a golden-colored lynx cub, Inspection Services (APHIS), an enforcement agency arrived at his new home, Eagle’s Nest Ranch, a sixteen-acre within the U.S. Department of Agriculture. The licensing menagerie in rural Baltimore County. Eagle’s Nest’s propri- process requires a federal inspector, some of whom are vet- etor, Daniel Vitilio, a farmer and rehabilitator, had erinarians, to investigate and certify that the animal care joined forces with other like-minded farms and small zoos facility complies with stringent federal regulations. The to rescue a group of lynxes and other wildcats from a Mid- regulations require the inspector to ensure that each animal western fur ranch. The project was a success and the play- lives in a proper environment and receives the nurture and ful twelve-week old lynx was to become one of Baltimore stimulation necessary for its species to thrive. County’s most familiar residents and a minor celebrity.

Puddy’s legal problems began in late summer 2005 when (continued on page 3)

2 Wild and Exotic Animals. . . (continued from page 2)

Because the purpose of the Animal Welfare Act and its pounds in the spring of 2008, nearly three years after the licensing requirements is to protect certain animals in dispute began. Nervously, Vitilio awaited the County’s re- “captivity” the Act does not preempt state regulation de- sponse at the AHB, although none was forthcoming. After signed to protect the public---hence Baltimore County’s more than a month had passed, Vitilio requested a default “wild animal” licensing requirement. Almost all state against the County for its silence when the AHB failed to and local governments have laws designed to protect the rule on the matter. The AHB refused to rule, so Vitilio ap- public from zoologically ignorant individuals who would pealed, which came to naught. At that point, Vitilio peti- keep Puddy for self-aggrandizing reasons. Like most tioned the Circuit Court to issue a writ of mandamus and states, Maryland Criminal statute’s prohibitions on keep- fi led an action for declaratory relief. ing “wild or exotic” animals grant state and local animal control agencies signifi cant powers of search, seizure Meanwhile, the County Council was quietly working on a and forfeiture. Had Puddy not lived in an ideal situation, legislative “solution”, unbeknownst to Vitilio. Fortuitously, the County probably would Vitilio learned that the Council had proposed an amendment have seized and relocated that would dispense with the “zoological park” exception-- him to another farm or zoo --the part of the code that Puddy’s case hinged upon. With- at Vitilio’s expense while out the exception, the County could have sent Puddy back to the legal issues slowly win- Siberia or worse. When Vitilio learned of the amendment at nowed their way up to the the eleventh hour, it was in its fi nal stage and needed only to Court of Special Appeals. be voted upon. Marshalling their resources, Vitilio and his supporters petitioned the Council and attended the voting Puddy’s legal odyssey be- session but the amendment was passed unanimously. gan with a hearing on the permit issue at the Balti- Fortunately, Puddy’s story has a happy ending, courtesy of more County Animal Hear- the Constitution. Everyone agreed that Vitilio’s ranch was ing Board (AHB); the AHB the only facility to have ever availed itself of the exception to is a typical Maryland coun- the permit requirement and his request for the exception had ty administrative agency de- been fi led months before the amendment had been passed. signed to adjudicate animal In an action for declaratory relief and request to enjoin the control issues. In this case as in most, the initial hearing enforcement of the new law against Eagle’s Nest, Vitilio ar- sets the course for the case since all appeals and judicial gued that the amendment would be an unconstitutional Bill review are based upon the evidence adduced at the fi rst of Attainder and Ex Post facto law. To avoid another round hearing. The AHB ruled against Vitilio, fi nding that he of appellate litigation, the County and Vitilio agreed that so needed the local permit to keep Puddy; the fi nding was long as Vitilio maintains his federal licensure, he may keep affi rmed by the Board of Commissioners on appeal and by Puddy at Eagle’s Nest. However, Puddy is the last Siberian the Baltimore County Circuit Court when Vitilio sought Lynx that will make his home in Baltimore County. judicial review. Puddy’s last hope was in Annapolis, so Vitilio took the case to the Court of Special Appeals.

The Court of Special Appeals issued an unpublished opin- ion in January 2008. The ruling was a win because the court agreed that although Vitilio did not have a permit, he may not need one because Eagle’s Nest, could fall within the “zoological park” exception to the County’s permit re- quirement. Since no one had questioned whether Eagles Nest and its 200-plus creatures was a “zoological park” at the initial hearing, the facts were ripe for litigation. Vitilio wasted no time and requested another hearing with AHB, the only agency that had jurisdiction. The clock ticked and the plot thickened. Anne Benaroya has practiced law for 20 years and currently is based in Rockville. Her practice focuses on constitutional Puddy continued to grow and reached his adult size of 90 law and animal law.

3 Signifi cant Legislation Affecting Animals: Bills Being Considered by the 2009 111th Congress

By Priya Sharma Animal protection laws have been growing at unprec- SIGNIFICANCE: The 1951 Fur Products Labelling Act edented rate, both in Maryland and on the federal level. requires that items made of fur be affi xed with a label in- Here is a summary of pending bills before the 111th Con- dicating from which animal the fur came from.11 However, gress which is currently in session. Individuals can voice the law exempts those items which have “a small quantity their support for any of these bills by calling Barbara A. or value of fur.”12 The 2009 bill proposes that all products Mikulski and Ben L. Cardin, U.S. Senators for Maryland, made wholly or partially from fur, even those made with and Donna Edwards and Chris Van Hollen, U.S. Repre- diminutive amounts of fur and those which are sold for a sentatives for Maryland. very low cost, would have to be accurately labelled.13 Peo- ple and organizations around the BILL: H.R. 503/S.727 United States are supporting this TITLE: The Prevention of bill, largely because the fur industry Equine Cruelty Act of 2009 continues to be one of the cruellest TOPIC: Equine Protection industries in the world.14 Animals SUBSTANCE: The purpose of trapped for fur suffer for days in the the bill is to ban the transporta- inhumane traps, and those raised tion and sale of horses for slaugh- for fur on fur factory farms are kept ter for human consumption.1 in small confi nements without the SIGNIFICANCE: Traditionally, room to stretch or move.15 When hundreds of thousands of horses killed, these animals are often elec- in the United States have been trocuted or have their necks broken slaughtered and sold to foreign to avoid damage to their coat.16 This companies in Europe and Asia bill seeks to inform the public as to for consumption.2 Since 2007, which products contain even trace there are no longer any domestic amounts of fur, so people can avoid slaughtering plants in the U.S.3 all fur products if they choose.17 Instead, middle- men purchase horses at live auc- BILL: H.R. 1326 tions and then transport them to TITLE: Great Ape Protection Act Canada and Mexico, where horse of 2009 processing plants are still in ex- TOPIC: Medical Testing on Apes istence.4 In 2008 over 100,000 SUBSTANCE: The purpose of the horses were exported to Canada and Mexico for slaughter.5 bill is end researchers from conducting invasive biomedi- The horses suffer greatly during transport as they are not cal procedures on great apes, and to retire those federally given food or water for over 24 hours and are confi ned to owned chimpanzees that currently reside in laboratories to small spaces.6 Once they reach the slaughter house the de- an animal sanctuary.18 pravation of food and water continues-- they are subjected SIGNIFICANCE: Currently, the United States allows to extreme heat and cold temperatures and are beaten as medical testing on great apes. A number of organizations, they are forced into the area where they are slaughtered.7 including the Humane Society, have conducted investiga- The actual slaughter is another inhumane process as they tions which show that the apes are routinely subjected to are often hung by a leg and then have their throats slit.8 This invasive procedures, that infant monkeys are taken away bill aims to protect U.S. horses from such a dire fate.9 from their mothers and tortured with medical practices, and that the primates exhibit signs of severe physical and psy- BILL: S. 1076/H.R. 2480 chological distress.19 Furthermore, maintaining and testing TITLE: The Truth In Fur Labelling Act of 2009 on apes costs U.S. citizen millions of dollars every year, TOPIC: Fur Labelling while many scientists posit that testing on chimps does not SUBSTANCE: The purpose of the bill is to improve the accuracy of fur labelling.10 (continued on page 5)

4 Signifi cant Legislation. . . (continued from page 4) provide accurate medical information due to the signifi cant 9 H.R. 503, 111th Cong. (2009) differences in the biology of chimpanzees and humans.20 10 H.R. 2480, 111th Cong. (2009) The combination of the cost, lack of accurate data that can 11 15 U.S.C. § 69b (2007) be gathered, and the severe suffering by the animals is the 12 15 U.S.C. § 69 (2007) basis for many of those supporting this bill.21 13 H.R. 2480, 111th Cong. § 2 (2009) 14 The Humane Society of the United States, Priya Sharma represents abused and neglected children in http://www.hsus.org/furfree/cruel_reality/the_cruel_ civil Child In Need of Assistance proceedings in Maryland. reality_of_fur.html 15 Id. Footnotes: 16 Id. 1 H.R. 503, 111th Cong. (2009) 17 H.R. 2480, 111th Cong. (2009) 2 Animal Welfare Institute 18 H.R. 1326, 111th Cong. § 2 (2009) http://awionline.org/ht/d/sp/i/11222/pid/11222 19 The Humane Society of the United States, 3 The American Association Of Equine Protection, http://www.hsus.org/press_and_publications/press_re- http://www.aaep.org/position_HR503_S727.htm leases/bill_to_end_invasive_chimp_research_intro- 4 Animal Welfare Institute duced_030509.html http://awionline.org/ht/d/sp/i/11222/pid/11222 20 Id.; Release and Restitution for Chimpanzees in U.S. 5 The American Association Of Equine Protection, Laboratories, http://www.releasechimps.org/fl awed- http://www.aaep.org/position_HR503_S727.htm science/dangerous-and-unnecessary/; Akhtar, A. Be- 6 Animal Welfare Institute yond Animal Research. Physicians Committee for http://awionline.org/ht/d/sp/i/11222/pid/11222 Responsible Medicine (2006). http://www.pcrm.org/ 7 Id. resch/anexp/beyond/monkey_0605.html 8 Id. 21 Id. Animal Law Section Elects New Offi cers

THE FOLLOWING PERSONS ARE serving on the Animal Law Section’s Council for 2009 to 2010:

Gary Norman Robert Malone Cheryl Leahy James Butler Jan Berlage The Honorable Lenore Gelfman Alan Nemeth Katherine Howard Susan Hankin Susan Adams Maricruz Bonfante Alexander Foster

The Animal Law Section Council elected offi cers at its July 30, 2009, meeting. The offi cers are:

Chair-elect for 2010-2011: Jan Berlage Secretary: Susan Hankin Treasurer: Maricruz Bonfante

Gary Norman is the current chair for 2009-2010.

5 Licensing Backyard Breeders

By Robert Moore

Forty years ago we bred our eighteen-month-old female the puppies until approximately eight weeks of age, do not Collie, believing it would be a “fantastic experience” for the females before maturity, do not over- breed the our young daughters. Five adorable puppies resulted, and it females and generally follow the adopted dog’s experience. truly was an unforgettable experience. For us. Normally these breeders offer to take “defective” dogs - those with temperament or health issues – back. The problem was, we had no idea what we were doing! To our untrained eyes the twelve-year-old male Collie seemed Potential hereditary issues may include eye problems that healthy and, at least as far as we ever knew - our knowledge threaten discomfort and blindness, and hip and joint abnor- vanishing with the families who took the puppies away - we malities that can predict future handicaps and expense. In did not pass along defective genes to infect future genera- addition, hearing, heart, hemophilia, digestive, epilepsy, al- tions. We were among those loosely referred to as “back- lergies, temperament and other problems may be routinely yard breeders,” who indiscriminately breed dogs and cats detected by proper veterinary care. in their kitchens, basements, yards or otherwise in unsuit- able, unhealthy, makeshift locations, ignorant of genetics, Everyone agrees our species has created a burgeoning prob- the health of the animals and uninterested in the puppies’ lem by carelessly over breeding our pets, resulting in health ultimate fate. problems for the adults and sentencing untold thousands an- nually to premature death. Many of these doomed innocents Approximately two-thirds of the estimated 53 million dogs are healthy, but can fi nd no home because of irresponsible, in the U.S. come from backyard breeders, the single greatest misguided behavior. cause of the pet overpopulation crisis in this country.1 The City of Gaithersburg enacted, on July 20, 2009, Section The Humane Society of the United States (“HSUS”) esti- 4-8.1 Breeders and Litter Permits, Municipal Ordinance mates six to eight million dogs and cats enter shelters an- No. 0-9-09, amending Chapter 4, Animals and Fowl, of the nually, of which no more than three to four million are ad- City Code in an effort to begin addressing this issue. Sec- opted, the rest being euthanized.2 One can approximate that tion 4-8.1 reads, in pertinent part: for every dog or cat produced by a backyard , one dog or cat is euthanized in a shelter. (a) Every person who resides within the city who intentionally or accidentally permits the Local animal control authorities, on those rare occasions breeding of a single dog or cat or makes a single when these breeders come to their attention, may be able dog or cat available for breeding shall obtain a to rescue, to a shelter, dogs found in egregious conditions. breeders permit . . . Those lucky enough to be rescued often are poorly social- ized or sick leading to inevitable euthanization. These The ordinance further authorizes no more than one litter breeders, unwilling to invest in essential veterinary care, during any 12-month period, from a female at least 2, and are more than willing to give up puppies and adults with no more than 6, years old, and requires proper body weight health issues to be maintained before and after whelping.

A “successful” backyard breeder, i.e. one who continually This law is admittedly controversial as evidenced by some procures dogs from various sources, including “free to good public comment and discussion among city council mem- home” ads, and is able to net a profi t in the absence of facil- bers, some of whom considered it unnecessary legislation ity and medical overhead expenses, may expand to become that would restrict law-abiding citizens. Others fear it will a “puppy miller,” supplying dogs to indiscriminate puppy not only be impossible to enforce, but will actually encour- mill retailers. age owners to not register their pets.

By contrast, reputable breeders, including “hobby breed- Clearly, some pet owners will refuse to either register their ers,” i.e. those who breed seriously and selectively, care- pets or obtain a breeder’s license. These are very likely fully screen for health and potential hereditary problems, maintain meticulous records of medical care, do not give up (continued on page 8)

6 Commentary: Bear Wisdom By Sarah Minick

With arms stretch high above my 5’2” frame, I run onto to 20 hours a day, our deck and yell in a loud, but calm voice, “That’s MY trying to get in the [Ed.Note: The of Black corn. That’s MY garden. Get out. Go away, and don’t come 20,000 or more bears in Maryland is prohibited back!” From inside, I heard the sharp thwack of snapping calories they need by MD. CODE. ANN. NAT. corn stalks like the pop of a small gun. And now a hundred to gain 3 to 5 RES. Section 10-423. However, yards away, I am shocked to see a mother black bear and her pounds a day.” this year there is a lottery for two cubs having breakfast on our ripening yellow kernels. black bear hunting. See www. I watch her for a minute in a stunned silence-to see a bear Sometimes people dnr.state.md.us; tab “wildlife”, in the wild is a magical experience. But I know the worst mistakenly think then under “Education” heading thing people can do is feed and humanize bears. When bears are fat furry hit “Black Bear Conservation people and bruins become too familiar, the bears lose, often creatures meant to Program”, then “Black Bears in with their lives. provide entertain- Maryland”. At this site see also ment. My dental Living with Black Bears and The Then I remembered that’s my corn! So I stand tall and try hygienist told me Black Bear Management Plan to look even taller by raising my arms. I don’t wave them they had a bear vis- for 2004-2013. or scream nonsense syllables. Sometimes bears don’t rec- iting their trashcans ognize us and become confused, and a confused bear turned during the night. Maryland has set up a program curious may venture closer to investigate. I want this mama After their son’s which permits the state to re- to have no questions that indeed I am a human being, and birthday party, her imburse individuals who have indeed she is invading my turf. I holler for her to leave, husband purpose- sustained damage to agricultural and it works. She walks to the garden’s edge, her two cubs fully propped the crops as a result of a black bear. following, her sleek profi le shining midnight black in the leftover cake on See NAT.RES. Section 10-423.1. morning sun. One cub stands on his hind legs, sniffi ng the top of the trashcan Proceeds from the sale of conser- wind, trying to fi gure out the danger. Then I bellow again, and then went out vation bear stamps or decals at a “I am a human. Take your cubs and leave.” The troop turns later to view the cost of $5 each help sustain this and trots away, disappearing into the canopy of leaves. show. Luckily the program. The stamps and decals bear had moved on may be purchased from the De- Human-bear confl ict occurs more often these days because and didn’t attend partment of Natural Resources.] many people now live in bear territory. Most of these in- this second party. teractions don’t harm humans. Linda Masterson, author Purposeful feeding of Living with Bears, explains, “There are approximately of bears is highly unwise and can be illegal. If a bear loses 900,000 black bears in North America. Every year people its fear of humans, it must often be killed. As the saying have millions of interactions with black bears. Yet between goes, “A fed bear is usually a dead bear.” 1900 and the summer of 2005 records reveal that just 57 people in North America were killed by black bears.” She When human-bear encounters increase, people can help continues, “To put that in perspective, 50 people in the Unit- keep bears safe and in the wild. Bring in bird feeders in ed States die every year from bee stings.” the summer months or string them so they are bear proof. Empty outside trashcans promptly, and enclose them to Confl icts often occur during warmer months when bears try keep bears out. Also remove pet food bowls after feeding so to fi ll their hungry stomachs just about any way possible. that no kibble remains for other creatures. Backyard birdfeeders, trashcans, and pet food bowls be- come prime targets-lots of calories for little work. If people Finally keep in mind that “the best way to deal with bear take this food away, usually the bears move on. confl icts is to prevent them from happening by making sure bears aren’t attracted to your home, yard, or neigh- “Most people want to be thin,” reports Masterson. Yet “all borhood,” says Masterson. She continues, “If you live in bears want to be fat.” To make it through their long hiberna- bear country, you and the bears are sharing space. Your tion, black bears eat ravenously when berries and acorns ripen. According to Masterson, these creatures “forage up (continued on page 8)

7 Backyard Breeders. . . (continued from page 6) the same folks who already ignore registration laws; when Footnotes: found, they are subject to penalties under existing laws. 1 2001-2207 Almost Home Daschund Rescue Society, http://www.almosthomerescue.org Enforcement obviously won’t be simple, as the animal con- 2 Statistics provided by The National Council on Pet Popu- trol staff has no intention of making bed checks; however, lation, Study and Policy, Updated July 7, 2008 when a neighbor complains, for example, about excessive barking, the responding offi cer will now have a tool hitherto unavailable should he discover a family of puppies. Bear Wisdom. . . (continued from page 7) The goal is neither to raise revenue from a nominal breeder’s license fee, nor to harass residents and task an overworked job is to make sure the bear doesn’t fi nd any reason to animal control staff with additional enforcement responsi- linger at your place.” bilities. Nor is the intention to prohibit responsible pet own- ers from breeding their dog or cat. In my garden an hour after mama bear and her cubs depart, I am surprised by another discovery: bears eat The purpose is to educate the public regarding the respon- corn just like we do. I imagined the creature chomp- sibilities of conscientious pet ownership, the obligations ing down through husk to devour kernel and cob whole. assumed when bringing living animals into being. Animal But not so. While she sat among the broken stalks, her control staff will have an opportunity to hand out materials, massive claws delicately peeled back the husk. Then and possibly discuss, such responsibilities with those seek- she nimbly cleaned out each kernel from the cob, even ing a license to breed their pet. rotating it between her paws to get the last bite.

This is not a naïve, unsophisticated proverbial stab in the I relish my memory of this visiting trio of beautiful dark; it is, rather, an honest effort to begin addressing a se- creatures, but in the future, we’re guarding our patch rious reality. I, for one, would fancy displaying a framed with an electric fence. breeder’s license were I intent on raising and selling off- spring of my Golden Retriever. Sarah Minick teaches reading in Virginia. She’s a knit- ter and basket maker and hikes and gardens with her Robert Moore has a general law practice and has been husband and three dogs. Distributed by Bay Journal practicing law for 30 years. He is the Chair of the Gaithers- News Service. burg Animal Control Board.

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